Saturday, 28 January 2012

Child support

After the BBC News interview with Work & Pensions Minister, Maria Miller, this morning about reform of the Child Support Agency there were some viewers’ texts.

One from a single mother asked whether anybody really expected her to pay £100 to the CSA to enforce payment of the £2.50 per week that the child’s father was liable to contribute.

Let me answer that one.

No, I don’t expect you or anybody else – taxpayer included – to spend that or indeed any money trying to recover £2.50 a week from the father.

I would prefer to spend money on trying to understand and change all the circumstances that create the expectation that anyone would.

More than that I look forward to the time that a clear understanding that nobody will pay is a major influence on decisions, actions and attitudes that generate many (not all) of these problems.

Yes, the office is still there

“Is the office still there?” – my wife used to ask, ironically, the day (or evening) after a holiday when I returned home after checking the post mountain.

Why? Because I’d spent the fortnight before we went away flaying myself in an effort to push every visible and anticipated plate so far up into the clouds that it wouldn’t come down before I got back.

One (plate) - at least - always did, of course. In hindsight, it was inevitable.

What do I do now?

I get up to date, without killing myself, and accept that there will be daily traffic that I monitor and manage remotely every day, not every minute.

Mobile technology empowers me to see what is happening and ignore, steer or (if I really must) seize control of it wherever I am.

Phone, text, e-mail – WAP or laptop – enables whatever level of response is required.

Result? No stress before the holiday, because it’s never too late to deal. No stress during the holiday because it’s under control. No stress after the holiday because it’s all up to date.

Sure, you never switch off completely but does any professional business owner ever?

Proof is, my family happily accept that Dad may spend 10 minutes here and there directing operations back at base but is then, and for all the holiday, a happy bunny.

Yes, my sweet, the office is still there - and we’re still here and all is good.

Friday, 27 January 2012

Ask the janitor...

I don’t earn two million quid a year, or anywhere near.

No problem. Most of us could always do with a bit more but not – as far as I’m concerned - at the price of (further) intrusion on precious time with my young family.

I’ve no idea of John Hester’s family circumstances. What does it matter anyway? It’s his choice if he’s missing something. It may be that he is, and that money will never compensate.

But that’s not the point.

The point is that there are some tough jobs to do at the spearhead of our economy and there ain’t many people who can and/or want to do them.

You can’t ask the janitor to step in, to keep the overheads down. Well – you could, but what result can you reasonably expect?

Monday, 23 January 2012

Back to reality (testing, testing...)

My clients are always right.

That's not as crazy as it may seem if we put it in the context of proceedings that get under way and head towards a contested hearing.  If we are wrong then one way or another we don’t fight.

Somebody will ask “what about the ones that don’t succeed at trial?” Well, the answer comes in two parts. First, we cannot immediately think of any and, secondly, not only the other side but also the judge got it wrong!

Seriously, there are commercial and reputational, as well as professional and regulatory, reasons why we try to avoid running losers.  The bottom-line is it’s bad business.

So, it follows that if somebody - provided they are a stakeholder in the proceedings - wants to discuss the merits then I’m generally happy to do so.  There might be exceptions for specific tactical reasons.

I include within the definition of “stakeholders” mediators, and within that - as I perceive them - ACAS conciliators.

But can I confidently expect that consistently - indeed ever on recent showing - one is going to be prepared to engage with me in a discussion about the merits of a claim or response? The situation hasn't changed since I blogged about this last May[1].

Coming back to the point that our clients are always right, what I really want to see is clear evidence of those neutral beings talking to the other side and using mediation skills to promote the dawn of realization.

Wednesday, 18 January 2012

Criminal, criminal, injuries

Just reading a report of a Criminal Injuries Compensation Authority award to an un-named twenty-two year old man.

He receives £4,133,744 for multiple criminal injuries sustained when he was assaulted in June 1989.

Bilateral haemorrhage, subdural haematoma, diffuse injury to brain substance, fracture to right femur, fractured right tibia and fibula, broken rib and finger amongst the injuries.

Results – autistic tendencies, difficulties with social interaction and language development, abnormal behaviour, mild motor problems – dyspraxia.

The person responsible for irreversibly changing his life at only five months old?

His own mother.

The financial cost (which we as a society should not hesitate to shoulder for the innocent victim) is significant.  The emotional and social cost, the sadness, the feelings of outrage and despair are simply unquantifiable. 

Society has to find cleverer, more powerful ways to prevent this.

Wednesday, 11 January 2012

Kick 'em when they're down

Talk about kicking someone when they’re down.

You’ve been dismissed – unfairly you believe. Unemployment is at a 17 year high. If you can find a job and get an interview, how long before you’re asked why you left your last job?

There must be a remedy – this is the UK. We’ve led the world in delivering justice and are still, in recession, building (expensive) facilities to make London the forum of choice for those who can afford it.

And for those who can’t, who live here, who have been sacked perhaps unfairly (contrary to the law as it still is presently)?

Yes, of course you have the Employment Tribunal – you know, that forum specially created for employment disputes, accessible to all, relatively speedy, fee free.

Of course, it costs money to run. That cost inevitably rises as volumes of business increase.

The political reaction to that seems an irritable one. The focus is on unmeritorious claims. The proposal to charge what will be to many people prohibitive fees is not an exercise in self-funding, but simply turning the tap.

It’s right that the facility – for justice – should not be clogged by speculative claims and vexatious parties but raising the bar indiscriminately is not the way to eliminate them.

Costs sanctions are.

It’s been said that the machinery is already there to strike out weak cases, either way, or dispense costs warnings but the problem is that the powers are too rarely deployed. Judges simply won’t go there.

I’ve had at least three pre-hearing reviews in the last year where one (the other!) party’s case was roundly condemned but allowed to continue. In another instance a judge refused even to list a one hour application to strike out a claim that was listed for a day of what turned out, unsurprisingly, to be one-way traffic start to finish.

Most advisers will tell you that costs orders just don’t happen. I was told so very firmly by my last opponent to such an application four months ago - a couple of hours before his client was ordered to pay £5,000 for his unreasonable defence of the claim.

That was my third ET costs order in as many years but generally they’re right. Employment judges don’t use the powers they have to arrest and deter waste of resource.

But that’s where the just answer lies – not in the wholesale denial of justice to all, including those who need and deserve it.

Tuesday, 10 January 2012

Speak softly but carry a big stick

This really works, and makes sense.

It seems a long time ago that the barrister friend who trained me said that mediation would be coming to the small claims track.  Perhaps it did not happen as quickly as one might have liked but, hey, - better late than never.

I would like to see consistency amongst courts.  It’s not a big deal, but here is a comparison.

A couple of months ago we had allocation directions from Bournemouth in a case which kicked off on the fast track but quickly moved downstairs as the defendants admitted and paid about 90% of the claim.

We had a long list of directions on allocation, one of which was that we should mediate – and if we didn’t, that failure might be considered “unreasonable conduct” within the meaning of CPR 27.14, opening up potential liability to a costs order.

I have no problem with that.  We were always willing to mediate, as was the defendant.  We did it within a month and reached a very sensible and satisfactory conclusion.

Recently I had a short and less detailed allocation notice from the Yeovil County Court.  The approach is slightly different.

We were told in this case that the judge thinks it might be suitable for mediation and if we would like to give it a try then we ought to contact the Mediation Service.

That’s it, basically.  We went for it because in most cases it makes sense. The defendant didn’t but there was no apparent pressure on him to do so. Trial looms.

There was a further contrast with a case in the same court a year ago where we, for claimant, said we would be prepared to mediate and the defendants said they would not.  In that instance another district judge issued a direction requiring the defendants to write and give reasons for their refusal.

Almost inevitably we did mediate the case and settled - not on the day but shortly afterwards.

Perhaps we should just look upon these (varying) schemes currently as Beta versions in the characteristically rushed, yet collaborative, way in which we make rules and build procedures in the present day.

But so many combatants will only listen to the softly spoken word if they see someone else in the arena carrying a big stick.